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filed: March 16, 1987.


Appeal from the Judgment entered on August 31, 1984, in the Court of Common Pleas of Northampton County, Civil Division, at No. 1983-C-3493. Appeal from the Order entered on October 10, 1984, in the Court of Common Pleas of Northampton County, Civil Division, at No. 1983-C-3493.


Jackson M. Sigmon, Bethlehem, for appellant.

Gus Milides, Easton, for appellee.

Irving W. Coleman, Philadelphia, for appellee.

Cirillo, President Judge, and Brosky, Rowley, Montemuro, Beck, Tamilia, Kelly, Popovich and Johnson, JJ. Cirillo, President Judge files a dissenting opinion. Tamilia, J., files a dissenting opinion, in which Popovich, J., joins.

Author: Beck

[ 361 Pa. Super. Page 449]

Appellant Shirley Coleman and appellee Harrison Coleman were married in 1955. Wife filed a complaint in divorce in Pennsylvania in May, 1983, seeking dissolution of the parties' marriage, equitable distribution of marital property, and counsel fees, costs, and expenses. In his answer to the complaint, husband admitted that no prior action had been initiated in Pennsylvania, but averred that a divorce suit, in which he was the plaintiff, was pending in Nevada. In the Pennsylvania action the court in September 1983 established an escrow account pursuant to a stipulation of counsel, to provide security for husband's appearance at future proceedings and satisfaction of wife's equitable distribution claims in the Pennsylvania action.

On May 8, 1984, both parties appeared before the Nevada Court which entered a divorce decree. The decree, inter alia, reserved wife's right to pursue her economic claims in Pennsylvania.

The decree in pertinent part provided:

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall transfer and convey by appropriate deed to the Defendant all of his right, title and interest in and to the marital home located in the State of Pennsylvania thereby vesting the property in the name of the Defendant as her sole and separate property absolutely;

[ 361 Pa. Super. Page 450]

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant the sum of $25,000.00 in lieu of Nevada alimony, and without prejudice to the Defendant's rights to pursue any relief in the State of Pennsylvania relative to such Page 450} matters and/or property within the jurisdiction of the Pennsylvania Domestic Relations Court;

IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the Plaintiff shall pay to the Defendant's attorney, Jack G. Perry, Esquire, the total sum of $1,500.00 as and for attorney's fees in this cause, as well as $41.00 in reimbursement for costs . . . .

(emphasis added).

In response to wife's assertion of her economic claims in Pennsylvania the Northampton County Court of Common Pleas disposed of the pending Pennsylvania divorce action in its order of August 7, 1984, holding that the entry of a foreign divorce decree in a proceeding in which both parties appeared precluded wife from pursuing any form of economic relief in Pennsylvania.

After wife filed her notice of appeal from the order of August 7, 1984, the trial court on October 10, 1984 granted husband's motion to terminate the escrow account. Wife appealed this second order also. The appeals have been consolidated and both are before us.

The primary issue on appeal is whether under the Pennsylvania Divorce Code*fn1 wife is barred from seeking equitable distribution and counsel fees because of the adjudication in the Nevada divorce proceeding in which she appeared. We conclude that she is not, and therefore vacate and remand.

A threshold inquiry is whether the trial court had subject matter jurisdiction to address wife's claims. It is well established that the test of subject matter jurisdiction is simply the competency of the trial court to hear and determine controversies of the general class at issue; i.e., whether the court has power to enter into the inquiry, and not whether it will ultimately decide that it can or cannot grant relief in the particular case before it. In re Jones & Laughlin Steel Corp., 488 Pa. 524, 412 A.2d 1099 (1980); Cheng v. Cheng, 347 Pa. Super. 515, 500 A.2d 1175 (1985);

[ 361 Pa. Super. Page 451]

§ 301 Jurisdiction

(a) The courts of this Commonwealth as defined in section 104 shall have original jurisdiction in cases of divorce and . . . where they have jurisdiction, shall determine in conjunction with any decree granting a divorce . . . the following matters, where raised in the complaint or the answer and issue appropriate decrees or orders with reference thereto and may retain continuing jurisdiction thereof:

(1) The determination and disposition of property rights and interests between spouses. . . .

§ 401 Decree of court

(c) In all matrimonial causes, the court shall have full equity power and jurisdiction and may issue injunctions or other orders which are necessary to protect the interests of the parties or to effectuate the purposes of this act, and may grant such other relief or remedy as equity and justice require against either party . . . .

23 P.S. §§ 301(a)(1), 401(c) (emphasis added).

In addition, Section 505 specifically provides jurisdiction to Pennsylvania courts to grant alimony to a defendant in a foreign divorce action where the defendant has not appeared in the foreign proceeding:

§ 505 Alimony where a foreign ex parte divorce or annulment

Whenever a person who was a resident of this Commonwealth at the time such person was a defendant or respondent in a foreign ex parte action for annulment or divorce petitions a court of this Commonwealth for alimony and establishes the need therefor, such court, if it has jurisdiction over the person or property of the other party, may order that such alimony be paid in the same manner and under the same conditions and limitations which pertain when alimony is sought as provided in this chapter.

23 P.S. § 505 (emphasis added); Sohmer v. Sohmer, 318 Pa. Super. 500, 505-07, 465 A.2d 665, 668 (1983). It is important to note, however, that Section 505 is not the comprehensive definition of the trial court's authority,

[ 361 Pa. Super. Page 453]

    which is contained in Sections 301 and 401(c), but rather is "[a] grant of a specific form of relief in particular circumstances." Cheng, 347 Pa. Super. at 522, 500 A.2d at 1179.*fn2

The relevant sections of the Code, 301, 401 and 505, grant broad jurisdiction to Pennsylvania courts. No section of the Code limits a court's authority to address the equitable distribution and counsel fee claims of a litigant in a foreign divorce proceeding, regardless of whether or not that litigant appeared in the foreign forum. We must therefore abide by the established principle that if the legislature has shown no indication of its intention to limit jurisdiction, the act in question must be construed as imposing no limitation. In re Jones & Laughlin Steel Corp., 263 Pa. Super. 378, 398 A.2d 186, aff'd, 488 Pa. 524, 412 A.2d 1099 (1979).

The fact that the Nevada court had subject matter jurisdiction and exercised it to a limited degree did not extinguish the statutory authority of a Pennsylvania court to dispose of the matters at issue.

A determination that the Pennsylvania court has subject matter jurisdiction, however, does not end our inquiry. We must now examine whether the wife is barred by the doctrine of res judicata from asserting her claims in Pennsylvania.

Res judicata, or claim preclusion, applies where the cause of action in one suit is identical to that involved in a prior final judgment. The doctrine holds that a final judgment rendered by a court of competent jurisdiction on the merits is conclusive of the rights of the parties and their privies and bars subsequent actions involving the same claim, demand, or cause of action and issues determined therein.

[ 361 Pa. Super. Page 454336]

Pa. Super. at 362, 485 A.2d at 1122 (emphasis added; citations omitted); see also LeBeau, 258 Pa. Super. at 523-25, 393 A.2d at 482.

The determination of whether a final judgment on the merits has been entered in a prior suit may depend in large measure upon how unfair it would be to the defendant in the second action to permit relitigation. Scoles, supra, at § 24.24. One commentator has noted that in deciding whether a claim should be precluded "all relevant circumstances [must be evaluated] including the extent to which the parties in the prior action had a full opportunity there to litigate, and actually litigated, the issues of their concern." Smit, International Res Judicata and Collateral Estoppel in the United States, 9 U.C.L.A.L.Rev. 44, 59 (1962) (emphasis added).

By ordering husband to convey his interest in the marital home to wife and to pay her counsel fees incurred in Nevada, the Nevada Court's decree addressed to some degree the issues of property distribution and counsel fees, costs and expenses. Nonetheless, the doctrine of res judicata does not preclude an equitable division of property or claims for counsel fees in Pennsylvania because of two key facts in this case: (1) the parties agreed to reserve wife's right to seek further economic relief in Pennsylvania; and (2) the Nevada decree was entered "without ...

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